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1 of 7 Education Policy Analysis Archives Volume 9 Number 24June 24, 2001ISSN 1068-2341 A peer-reviewed scholarly journal Editor: Gene V Glass, College of Education Arizona State University Copyright 2001, the EDUCATION POLICY ANALYSIS ARCHIVES. Permission is hereby granted to copy any article if EPAA is credited and copies are not sold. Articles appearing in EPAA are abstracted in the Current Index to Journals in Education by the ERIC Clearinghouse on Assessment and Evaluation and are permanently archived in Resources in Education .Alexander v. Sandoval : A Setback for Civil Rights Kevin G. Welner University of Colorado, BoulderAbstract This article confronts the serious implications of a recent U.S. Supreme Court decision, Alexander v. Sandoval which eliminated an important legal avenue for civil rights plaintiffs. For over 35 years, individuals have been allowed to bring lawsuits directly challe nging violations of rights set forth in the federal regulations impleme nting Title VI of the 1964 Civil Rights Act. Because these actions could be grounded in proof of disparate impact, rather than discriminatory int ent, they allowed for some claims that could not go forward under other l egal authorities, such as the Fourteenth Amendment. While the author concl udes by identifying key remaining options, he highlights th e real damage done by this decision. I recently had occasion to remember a meeti ng three years ago with Richard Cohen, the legal director of the Southern Poverty Law Center in Montgomery, Alabama. At that meeting, he told me about his lawsuit on behalf of Martha Sandoval, a house cleaner
2 of 7from Mobile and a Mexican immigrant. Ms. Sandoval w as denied a drivers' license because she could not pass the state's written exam The voters of Alabama had passed an English-Only law, and the state interpreted that law to require that drivers' license exams be offered only in English (the only state wi th such a limitation). While Ms. Sandoval's working knowledge of English was suffici ent to read road signs, it was not sufficient to take the exam. Mr. Cohen brought a class action lawsuit on behalf of Ms. Sandoval and the 24,000 other non-English speakers in Alabama, alleging tha t the state violated federal law by requiring applicants for drivers' licenses to take the written examination in English. The particular federal law that supported this lawsuit is known as Title VI of the 1964 Civil Rights Act (42 U.S.C. § 2000(d)). Title VI prohibit s discrimination grounded in race, color or national origin. Like the Fourteenth Amendment's Equal Prote ction Clause, Title VI has been judicially interpreted to require proof of discrimi natory intent. Proof limited to discriminatory effect, such as is clearly evident w ith the Alabama law, is insufficient. Yet, while courts have interpreted the statute itse lf to bar only intentional discrimination, federal regulations implementing Title VI, pursuant to § 602 of the st atute, have been consistently given a broader interpretation (see re gulations at 34 C.F.R. §100.3(b)(2)). Lawsuits grounded in these implementing regulations are unique in that they allow people like Ms. Sandoval to make their arguments in federal court by showing the discriminatory effect (disparate impact) of a law This brief article is about such Title VI disparate impact lawsuits and April's Supreme Co urt decision against Martha Sandoval, in Alexander v. Sandoval 121 S.Ct. 1511 (2001), eliminating the right of M s. Sandoval and all others to pursue lawsuits directly enforcing the Title VI regulations. Intent versus effectwhat's the difference? After all, the worst discrimination is surely intentional. The SPLC, for instance, has bui lt an impressive record of court victories on behalf of victims of such egregious ra cism. These cases target the KKK and neo-Nazi organizations. The defendants are abhorren t, and the issue of racist intent cannot be seriously questioned. Further, we as a so ciety do not want to encourage frivolous lawsuits grounded only in a statistically disproportionate effect on some minority group. What is the harm of limiting lawsui ts to only those where discriminatory intent is clear? In a nutshell, policy makers today, no matt er what their actual intent, are loath to expressly state an intent to discriminate. Even the English Only law that prompted Ms. Sandoval's lawsuit was likely promoted on facially neutral grounds such as unity, assimilation, and even fiscal efficiency. Within ce rtain limits, policies that have a clear discriminatory impact should be closely scrutinized and the government should have to offer reasonable justifications for them, even if t here exists no smoking gun demonstrating an intent to discriminate. This is ho w courts approached Title VI disparate impact cases before April's Supreme Court decision. While the person bringing the case must prove that the practice in question h as a disproportionate and negative impact on a protected group, the defendant (e.g., a state government or a school district) can then respond by demonstrating a legitimate, non discriminatory reason for the practice (see Powell v. Ridge 189 F.3d 387 (3d Cir. 1999); 34 C.F.R. §100.3(b)( 2)). Frivolous lawsuits therefore fail either because of a lack of proof of disproportionate negative impact or because of an appropriate, nondi scriminatory reason for the practice. In Ms. Sandoval's case, the SPLC lawyers ea sily proved that the drivers' license rule had the prohibited effect of discriminating on the basis of national origin. Given that illiterate residents who could nonetheless understa nd spoken English were allowed to take the Alabama drivers' license exam in spoken fo rm (with someone reading them the
3 of 7questions in English), the state could not justify denying residents like Ms. Sandoval the opportunity to take the written exam in a form that they could understand. The trial court agreed with Ms. Sandoval, as did the court of appea ls. Normally, this would have been the end of the matter. But attorneys for the State of Alabama took one last shot. They asked the U.S. Supreme Court to declare that Congress never intend ed private individuals to be able to bring lawsuits directly under the authority of the Title VI implementing regulations. The Court agreed to hear the case, and on April 24, 2001 they reversed the judgment. By a 5-4 majority in Alexander v. Sandoval (the same breakdown of individual Justices deciding in favor of George W. Bush in Bush v. Gore ), the Court concluded that Congress only intended these regulations to be dire ctly enforceable by the Office of Civil Rightsa political body with very limited res ourcesnot by a private right of action. The Court's decision even to consider this case was shocking. In the 37 years since the passage of the Civil Rights Act, the Court has several times given a tacit nod of approval to the now-forbidden private actions. More over, the issue of private actions brought under the Title VI regulations had been dec ided by 9 of the 12 U.S. Courts of Appeals, and there was no dispute: all agreed that such an action is legally appropriate. The Supreme Court will rarely hear a case addressin g legal issues about which there exists no dispute among the various Courts of Appea ls. Yet this Court reached out to hear the case. The fallout from Alexander is potentially enormous. For instance, in New York ACLU attorneys may not be able to continue their Ti tle VI action claiming that educational opportunities for the state's minority students are so inferior that they amount to discrimination. Similarly, in Pennsylvani a, Philadelphia may have to dismiss its Title VI claim alleging that the Pennsylvania f unding formula disparately impacts districts with higher minority enrollments. Dozens of other important civil rights cases will suffer a similar fate. For these reasons, the Court's decision in Alexander comes as a great disappointment. While expectations for the present Supreme Court may be low, courts as an institution play a crucial role in our consti tutional system. American courts, particularly federal courts, once represented a ref uge for children seeking access to educational opportunities. While the legislative an d executive branches were responsive to those who sought policies expanding local contro l, pushing for tougher standards, or enhancing individual choice, the judicial branch se rved the interests of equity. Civil rights groups leveraged court mandates into broader equity-minded educational policy reforms benefiting, among others, African Americans Latinos, immigrants, and students with disabilities. Over the past two to three decad es, litigation has undoubtedly been a less successful tool for social justice. Yet this s hift, partially attributable to a corresponding shift in judges' ideologies, need not be permanent; the judiciary retains its unique institutional position as protector of the c onstitutional rights of political minorities. The gloomy picture painted by the above des cription of Alexander and its probable aftermath should be tempered by the reality that, f or better or worse, many judges' decisions in civil rights cases are grounded as muc h in their understanding of what is fair as in the specific elements of the legal cla im for relief then at issue. From this perspective, what is important is that civil rights cases must find a legal toeholdsome legislative justification to have the case consider ed. While the useful toehold provided by the implied right of action under the Title VI i mplementing regulations has now disappeared, other options remain.
4 of 7 The most likely alternative course for futu re private actions may be offered by Section 1983 (of Title 42 of the U.S. Code), the re construction era legislation that authorizes lawsuits against the government or gover nment officials responsible for the deprivation of any rights, privileges, or immuniti es secured by the Constitution and laws. The implementing regulations for Title VI ma y fall within the scope of Section 1983's protections. Actions brought under § 1983 by pass the increasingly difficult implied right of action analysis. Congress expressly intended § 1983 to gi ve civil rights plaintiffs access to the direct judicial relief. In fact, the Pennsylvania funding case ment ioned above includes a disparate impact claim for relief, under the terms of Title VI's imp lementing regulations, based on § 1983 ( Powell v. Ridge 189 F.3d at 400-403). See also, Bradford C. Mank, Using § 1983 to Enforce Title VI's Section 602 Regulations, 49 U. Kans. L. Rev 321 (2001) (arguing that § 1983 should support private rights of action to e nforce the disparate impact regulations issued pursuant to § 602). In the perhaps overly op timistic words of Justice Stevens (dissenting) in Alexander [T]his case is something of a sport. Litigants w ho in the future wish to enforce the Title VI regulations aga inst state actors in all likelihood must only reference § 1983 to obtain relief. 121 S.Ct. at 1527. Another alternative would be to turn to Con gress for legislation that would return Title VI jurisprudence to its preAlexander state, as has been done with the Civil Rights Restoration Act of 1991 following the Supreme Court 's decision in Wards Cove Packing Co. v. Atonio 490 U.S. 642 (1989). But such remedial legislatio n seems unlikely be approved by Congress or signed by the President in the near future. During my meeting with Richard Cohen of the SPLC, we discussed the importance of responding to systemic denials of educational ri ghts with lawsuits that employ systemic legal approaches. When he argued Ms. Sando val's case before the Supreme Court, he tried to protect one such systemic approa ch. The Supreme Court's decision to undermine Title VI unquestionably represents a seve re setback for children seeking schooling opportunities. Eventually, the education rights community will be able to recover from this blow, but this will take time and the opportunity costs will be high. Instead of working to advance the cause of equal ri ghts beyond its present state, advocates will have to devote their energies to rep airing the damage incurred last week. In the meantime, many aggrieved students and others will find themselves without sufficient remedies. The Court's decision in Alexander was much more than a legal abstraction; it marks a poignant shift in how Americans are allowed to tr eat one another.About the Author Kevin G. WelnerSchool of EducationUniversity of ColoradoBoulder, CO 80309-0249(303) 492-8370E-mail: email@example.comB.A. University of California, Santa Barbara, 1985J.D. University of California, Los Angeles, 1988Ph.D. University of California, Los Angeles, 1997
5 of 7 Kevin G. Welner is an attorney, an assistant profes sor at the University of Colorado at Boulder's School of Education, and co-director of C U-Boulder's Education and the Public Interest Center His book entitled Legal Rights, Local Wrongs: When Community Control Collides with Educational Equity will be published by SUNY Press later this year. His homepage is at http://www.colorado.edu/ed ucation/contacts/faculty/welnerCopyright 2001 by the Education Policy Analysis ArchivesThe World Wide Web address for the Education Policy Analysis Archives is epaa.asu.edu General questions about appropriateness of topics o r particular articles may be addressed to the Editor, Gene V Glass, firstname.lastname@example.org or reach him at College of Education, Arizona State University, Tempe, AZ 8 5287-0211. (602-965-9644). The Commentary Editor is Casey D. C obb: email@example.com .EPAA Editorial Board Michael W. Apple University of Wisconsin Greg Camilli Rutgers University John Covaleskie Northern Michigan University Alan Davis University of Colorado, Denver Sherman Dorn University of South Florida Mark E. Fetler California Commission on Teacher Credentialing Richard Garlikov firstname.lastname@example.org Thomas F. Green Syracuse University Alison I. Griffith York University Arlen Gullickson Western Michigan University Ernest R. House University of Colorado Aimee Howley Ohio University Craig B. Howley Appalachia Educational Laboratory William Hunter University of Calgary Daniel Kalls Ume University Benjamin Levin University of Manitoba Thomas Mauhs-Pugh Green Mountain College Dewayne Matthews Western Interstate Commission for HigherEducation William McInerney Purdue University Mary McKeown-Moak MGT of America (Austin, TX) Les McLean University of Toronto Susan Bobbitt Nolen University of Washington Anne L. Pemberton email@example.com Hugh G. Petrie SUNY Buffalo Richard C. Richardson New York University Anthony G. Rud Jr. Purdue University
6 of 7 Dennis Sayers Ann Leavenworth Centerfor Accelerated Learning Jay D. Scribner University of Texas at Austin Michael Scriven firstname.lastname@example.org Robert E. Stake University of IllinoisUC Robert Stonehill U.S. Department of Education David D. Williams Brigham Young UniversityEPAA Spanish Language Editorial BoardAssociate Editor for Spanish Language Roberto Rodrguez Gmez Universidad Nacional Autnoma de Mxico email@example.com Adrin Acosta (Mxico) Universidad de Guadalajaraadrianacosta@compuserve.com J. Flix Angulo Rasco (Spain) Universidad de Cdizfelix.firstname.lastname@example.org Teresa Bracho (Mxico) Centro de Investigacin y DocenciaEconmica-CIDEbracho dis1.cide.mx Alejandro Canales (Mxico) Universidad Nacional Autnoma deMxicocanalesa@servidor.unam.mx Ursula Casanova (U.S.A.) Arizona State Universitycasanova@asu.edu Jos Contreras Domingo Universitat de Barcelona Jose.Contreras@doe.d5.ub.es Erwin Epstein (U.S.A.) Loyola University of ChicagoEepstein@luc.edu Josu Gonzlez (U.S.A.) Arizona State Universityjosue@asu.edu Rollin Kent (Mxico)Departamento de InvestigacinEducativa-DIE/CINVESTAVrkent@gemtel.com.mx email@example.com Mara Beatriz Luce (Brazil)Universidad Federal de Rio Grande do Sul-UFRGSlucemb@orion.ufrgs.brJavier Mendoza Rojas (Mxico)Universidad Nacional Autnoma deMxicojaviermr@servidor.unam.mxMarcela Mollis (Argentina)Universidad de Buenos Airesmmollis@filo.uba.ar Humberto Muoz Garca (Mxico) Universidad Nacional Autnoma deMxicohumberto@servidor.unam.mxAngel Ignacio Prez Gmez (Spain)Universidad de Mlagaaiperez@uma.es Daniel Schugurensky (Argentina-Canad)OISE/UT, Canadadschugurensky@oise.utoronto.ca Simon Schwartzman (Brazil)Fundao Instituto Brasileiro e Geografiae Estatstica firstname.lastname@example.org
7 of 7 Jurjo Torres Santom (Spain)Universidad de A Coruajurjo@udc.es Carlos Alberto Torres (U.S.A.)University of California, Los Angelestorres@gseisucla.edu
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Educational policy analysis archives.
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Alexander v. Sandoval : a setback for civil rights / Kevin G. Welner.
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